R. v. Siddiqi, 2018 ONCJ 660

ONTARIO COURT OF JUSTICE CITATION: R. v. Siddiqi , 2018 ONCJ 660 DATE: 2018 09 20 COURT FILE No.: Brampton 3111 998 17 6104 BETWEEN: HER MAJESTY THE QUEEN — AND — ADNAN HUSSAIN SIDDIQI Before Justice G.P. Renwick Heard on 19, 20 September 2018 Reasons for Judgment released on 20 September 2018 C. Coughlin.......................................................................................... counsel for the Crown E.

Chan............................................... counsel for the defendant Adnan Hussain Siddiqi RENWICK J.: (ORALLY) INTRODUCTION [ 1 ] The defendant faces three counts: fail to remain at the scene of an accident, impaired driving, and having an excess blood alcohol concentration while driving.

With respect to the issue of the identity of the driver who crashed into a parked car and abandoned the car, running, a couple of blocks away, the prosecution’s case is entirely circumstantial. [ 2 ] The prosecution called a witness to the post-impact flight of the vehicle admittedly operated by the defendant earlier that night in addition to three police witnesses. No defence evidence was called.

There were no Charter applications filed. [ 3 ] In the end, although the defendant does not concede that if the Court is satisfied beyond a reasonable doubt that he was the driver of the Nissan Altima in question that the offences are proven, there is no contest to the prosecution’s evidence (irrespective of the element of identity) to prove the remaining elements of the offences charged. [ 4 ] If I am satisfied beyond a reasonable doubt that the defendant was the driver of the Altima at the relevant time, I will be satisfied beyond a reasonable doubt that the Crown has met its onus to prove all three offences.

GENERAL LEGAL PRINCIPLES [ 5 ] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial unless and until the court is satisfied that the charge has been proven beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial.

In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven the element of identity beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that Mr. Siddiqi was the driver of the Altima motor vehicle at the relevant time, he will be acquitted of these charges. [ 6 ] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial.

While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is

no mathematical precision to proof beyond a reasonable doubt but it lies much closer to absolute certainty than to proof on a balance ofprobabilities.[1] If after considering all of the admissible evidence I am sure that the defendant committed the alleged offence I mustconvict him, since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, than I have areasonable doubt and an acquittal must follow. [7] The evidence of identity in this case is circumstantial.

In order to be satisfied that the identity of the driver has been proven tobe the defendant beyond a reasonable doubt, I must be satisfied that it is the only reasonable inference available on the evidence.[2] Inassessing the case, I must consider the evidence cumulatively and as a whole.

Given that each circumstantial piece of evidence may beinsufficient on its own to support the required inference, I must consider all of the individual pieces of evidence together to determinewhether the prosecution has met its burden. [8] As well, although the defendant did not testify before me, I am prepared to treat the utterances he made to the police asevidence that is inconsistent with his guilt and which require an analysis of the principles expressed in R. v. W.(D.), (SCC), [1991] S.C.J. No. 26. I rely heavily upon the

article written by Paciocco J.A. entitled, “Doubt about Doubt: Coping with W.(D.)And Credibility Assessment” found at 2017 22 Canadian Criminal Law Review 31. Justice Paciocco breaks down the W.(D.) principlesinto 5 propositions: (

i) I cannot properly resolve this case by simply deciding which conflicting version of events is preferred; (ii) If I believe evidence that is inconsistent with the guilt of the defendant, I cannot convict the defendant; (iii) Even if I do not entirely believe the evidence inconsistent with the guilt of the defendant, if I cannot decide whether that evidenceis true, there is a reasonable doubt and the defendant must be acquitted; (iv) Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and (

v) Even where I entirely disbelieve evidence inconsistent with guilt, the defendant should not be convicted unless the evidence that isgiven credit proves the defendant’s guilt beyond a reasonable doubt. [9] In the next part, I will outline some of the evidence. I will also provide an assessment of some of the viva voce testimony, withreferences to the evidence taken.

Although I may not refer to all of what a witness said, I listened to each witness care​fully, I have takenlengthy notes, and I have assessed the witness’ testimony for intrinsic and extrinsic consistency, plausibility, balance, possible interest,and their ability to observe, recall, and communicate. THE EVIDENCE [10] There is little contest as between the parties of the evidence adduced in this trial. At issue is the probative value of the evidence,the inferences that flow from the evidence and the sufficiency of the totality of the evidence.

Accordingly, I do not propose to outlinemuch of the evidence, except where it assists to understand my findings and the route to my conclusions. [11] Ms. Crisante was an independent witness who observed the after-math of the collision and the flight of the Nissan Altima motorvehicle. Unfortunately, she did not give any description of any occupant or occupants in the vehicle she saw before it departed. Sheadmitted in cross-examination that she was unable to tell the number of occupants or the gender of any occupant in the vehicle.

In termsof her evidence, it was largely uncontested by cross-examination and it was entirely consistent, plausible, and balanced. I accept all of herevidence as truthful and accurate, without hesitation. [12] Constable Pembleton was the arresting officer. Based on his demeanor and appearance while he testified, I found him to be anervous witness. That said, I did not take that as a sign of unreliability.

Rather, it is merely an observation of the presentation of hisevidence. [13] Constable Pembleton followed the trail of engine fluids from the collision scene to the Nissan Altima, a couple of blocks away.The abandoned vehicle was running and he could see the key fob to start the vehicle was in the centre console. After noting the damage,he returned to his police car.

There he was alerted by another officer who had arrived that two men were associated to the Altima. [14] When officer Pembleton approached the defendant, before he asked anything the defendant said: “what the fuck happened to myvehicle; I parked it here because I was drinking and I didn’t want to get caught drinking and driving.” The officer also testi​fied that thedefendant offered that he was coming from his friend’s house, which the officer testified that when the defendant described where thatwas, it was where the collision had occurred. [15] Based on the totality of the circumstances presented to the officer, including the noticeable smell of an alcoholic beverage onthe defendant’s breath and a “rug-burn” type abrasion on the defendant’s face, which he believed was consistent with the deployment ofthe driver’s air bag in the vehicle, the officer formed the belief that the defendant had operated the motor vehicle while his ability to doso was impaired by alcohol.

He arrested the defendant and provided the rights to counsel and caution. At 2:41am in response to whetherthe defendant understood the caution, Mr. Siddiqi replied, “yes, but I have not been drinking.”

[16] In cross-examination, Constable Pembleton admitted that he did not know if the 2008 Nissan Altima vehicle contained a frontpassenger air bag. As well, it became clear during the officer’s cross-examination that he was aware that the passenger, who owned thecellular telephone found on the front passenger seat, Mr. Muhammed Mumzaz, had also been drinking alcohol. Lastly, ConstablePembleton did not examine the air bag or the vehicle for any blood.

He believed, from his experience, that the “rug-burn” type injury onthe defendant’s face was caused by the deployment of the driver’s side air bag, rather than the dashboard in front of the front passengerseat. [17] It was also obvious during cross-examination that the officer disbelieved the defendant’s lack of knowledge of what hadhappened to the Altima. That said, the officer took no issue with the explanation that the defendant and Mr. Mumzaz was coming fromthe latter’s home, or that the defendant had parked the vehicle in that spot, at some point earlier in the evening.

The officer also admittedthat he made no efforts to track down Mr. Mumzaz for a statement. [18] There is no dispute by the defendant that Officer Pembleton was honest in the evidence he gave. In fact, the defendant wants thecourt to accept this officer’s evidence in its entirety to establish the potentially exculpatory utterances of the defendant at the scene and toprove that the police did not appropriately investigate and rule out an alternative suspect for the offences: Mr. Mumzaz. [19] Despite this apparent concession, I have come to my own conclusion about Officer Pembleton’s evidence.

I accept this officer’stestimony as accurate, reliable, and truthful in all respects. It is balanced, plausible, and consistent when measured against all of hisevidence and the other evidence adduced during the trial. [20] The prosecution also called Constable Marc Lahaie as a witness. This officer was a secondary witness to this investigation andhis role centered around his discussion with Mr. Mumzaz, once the defendant had been arrested. He testified that he was specificallyinspecting the abandoned Nissan vehicle for evidence of the driver’s identification and blood.

He testified that he was concerned that ifan occupant had been injured and had wandered off, the person may need medical attention. After looking in the car for 1-2 minutes andnot finding any identification documents or blood he was approached by the defendant and Mr. Mumzaz. [21] During cross-examination, this officer testified that he believed that Mr. Mumzaz had been in the vehicle during the collision.Constable Lahaie testified that he did not believe that Mr.

Mumzaz had been the driver because his cell phone was found on the frontpassenger seat and because he did not have any injuries. [22] This evidence was not contested or in any way challenged during the remainder of the cross-examination. [23] This officer testified in a matter of fact way. He admitted that he did not press Mr. Mumzaz’s statement that he would not assistthe police with who had been driving during the collision despite his belief that Mr. Mumzaz was the front seat passenger.

Overall, Ifound this witness to be accurate, reliable, consistent, and truthful and I accept his evidence without hesitation. [24] During the breath sampling procedure at the police station, the defendant offered a fuller explanation of events to the qualifiedtechnician, Jeff Caplan. He told the breath technician that he had parked the car and with his friends they took a taxi to the bar wherethey drank, before he walked back and discovered his car. The defendant’s version of events remained consistent with his earlierutterances to the police.

When asked about his facial injuries and the blood on his shirt the defendant appeared unaware of the injuries orthe blood and he claimed not to know how he had been injured. [25] The defendant does not appear to challenge the accuracy of the videotape recording of his utterances. I need not make anyfindings of credibility of Officer Caplan, but I would have been prepared to accept all of his evidence as truthful and accurate as well. ANALYSIS [26] The defendant has denied his involvement in the motor vehicle collision.

There is no issue that he had been driving the NissanAltima before the collision, that he had consumed alcohol, and that his blood alcohol concentration was well in excess of the legal limitwhen his breath sampling occurred.

I must determine whether or not the evidence inconsistent with the guilt of the defendant is believed,or if not, whether it raises a reasonable doubt, or if not, whether the only reasonable inference from the circumstantial evidence provesthat the defendant was the driver who crashed and fled the scene, and if so, am I satisfied of the defendant’s guilt, beyond a reasonabledoubt. [27] As for the defendant’s denial of knowledge of the damage to his car and his version of events that he had not been driving at thetime of the collision, I find that this evidence does not raise a reasonable doubt in my mind.

If I am to accept his version of events, I mustfind that the thief who stole his vehicle and crashed it into the parked Acura then returned the vehicle to the identical spot where thedefendant had initially left it. This is implausible, to say the least. There would be no reason to return the vehicle to the spot from whichit had been stolen, thus exposing the thief to the potential to be seen leaving the vehicle by Mr. Siddiqi. [28] This version of events does not make sense to me.

I give the defendant credit that his version of events remained consistent asacross the various utterances he gave to the police, but apart from that, it strikes me as completely fictitious, hollow, and implausible. Ireject this version of events. It is not true. Moreover, I am not left in any doubt by this evidence. [29] I remind myself that this rejection of the defendant’s evidence is not positive evidence of anything.

I must still consider whetherthe evidence I accept proves the defendant’s guilt, beyond a reasonable doubt. [30] The defendant also submitted that I could not use the fact of the defendant’s lies to the police as positive evidence of guiltunless I conducted the analysis from R. v. Hibbert, 2002 SCC 39 , [2002] S.C.J. No. 40 at paras. 54-67. It is obvious to me thatthe defendant was not truthful when he lied to the police about not having an awareness about the cause of the damage to his car and hisnarrative of leaving his vehicle parked for several hours before he discovered it just after the police.

Nonetheless, I am not prepared tofind that this proves that the defendant was the driver. He could well have been lying to protect Mr. Mumzaz, or another of his friends, aswell as himself. This brings me to the final analysis that must be conducted in this matter.

[ 31 ] Given that this is a circumstantial case, I must be satisfied that the only reasonable inference that arises on the evidence is that the defendant was the driver in question. If there is any other reasonable inference that can be drawn from the circumstantial evidence, the defendant is entitled to an acquittal of these charges. [ 32 ] I have already discounted one possibility that was advanced by the defendant to the police: that a stranger removed the parked vehicle, crashed it, then replaced it in the same spot. The stranger left behind Mr. Mumzaz’s cell phone as well.

Again, I reject this as an unreasonable inference on all of the evidence. It is far-fetched speculation and it is without any foundation on the evidence. [ 33 ] The only other possibility advanced was that Mr. Mumzaz was the driver of the vehicle at the time of the collision. This alternative explanation does not entirely account for the defendant: he could have been a front seat passenger in the vehicle or he may have been elsewhere. This explanation could account for the presence of Mr. Mumzaz’s cell phone in the car and his initial untruthfulness about his presence in the vehicle at the relevant time.

If he were the driver, it makes sense that he would deny his presence in the car to the police. [ 34 ] However, this alternative theory does not account for several features in the evidence. Why was the passenger window also rolled down if Mr. Mumzaz was the driver and sole occupant? Why did he leave his cell phone on the front passenger seat? Where was the defendant while Mr. Mumzaz drove the vehicle alone? How did the defendant receive his injuries? Why did Mr. Mumzaz not have any facial injuries? [ 35 ] The defendant submitted in argument that the prosecution failed to establish that Mr.

Mumzaz had no facial injuries. I reject this submission. It does not accord with the evidence. The evidence of officer Lahaie is that Mr. Mumzaz had no injuries. He was clear on this and this evidence was not challenged. [ 36 ] The defendant wants me to find that Mr. Mumzaz possibly had a facial injury but since the police had made up their mind that the defendant was the driver they failed to adequately consider the alternative possibility that Mr. Mumzaz had driven the car, and subsequently, they became blind to other evidence.

Even if I were prepared to find that the police had rushed to their conclusion, which I am not, it does not follow that they would then fail to notice any injuries on Mr. Mumzaz, or if they had noticed an injury they would ignore it, charge the defendant, and then cover up the fact of any injuries on Mr. Mumzaz by lying about the lack of injuries in court. [ 37 ] The other possible explanation, is that the defendant was the front passenger while Mr. Mumzaz drove. This explanation is also unreasonable. Firstly, the police noticed that Mr. Mumzaz had also been drinking alcohol.

It is not reasonable to posit that the defendant had Mr. Mumzaz drive the Nissan to avoid drinking and driving when Mr. Mumzaz had also been drinking. Secondly, if the defendant were in the passenger seat at the time they abandoned the car, why was Mr. Mumzaz’s cell phone left on that seat. Thirdly, what explanation is there for the facial injuries to Mr. Siddiqi and the lack of any injuries to Mr. Mumzaz when the driver’s air bag had deployed. [ 38 ] I am not prepared to accept that there is any other reasonable possibility that accounts for all of the circumstantial evidence in this case.

The location of the passenger’s cell phone, the injuries to the defendant, the lack of injuries to the passenger, and the fact of the single air bag deployment proves beyond a reasonable doubt that the defendant was the driver of the Nissan Altima when it crashed, and left the scene. CONCLUSION [ 39 ] The defendant was impaired in his ability to operate the car by his consumption of alcohol, he panicked after crashing, he left the car and then he returned, possibly to retrieve the key fob and most certainly to retrieve Mr. Mumzaz’s cell phone in order to avoid detection and apprehension.

At the time of the collision, the defendant’s blood alcohol concentration was more than twice the legal limit. [ 40 ] Accordingly, Adnan Hussain Siddiqi is found guilty of all three offences. Released: 20 September 2018 Justice G. Paul Renwick